Harvey Weiner is National Judge Advocate of the Jewish War Veterans of the United States Inc., which submitted an amicus brief in support of the challengers in The American Legion v. American Humanist Association.

In its opinion today, the U.S. Supreme Court has abandoned almost 40 years of precedent, albeit very difficult precedent, and made it almost impossible to challenge religious monuments that truly amount to the establishment of a religion under the First Amendment of the U.S. Constitution. The entire opinion, including the dissent, begins by giving almost a secular name to what is so clearly a religious object. The Bladensburg War Memorial is not a “Peace Cross,” whatever that is. It is a war memorial cross with the names of 49 soldiers who died in World War I engraved on it. That cross means that those 49 individuals, who died in war, will, through their belief in Jesus Christ, arise from the dead and have eternal life. That message contained in a 40-foot cross on governmental land and maintained by governmental funds is the prime message sent. It does not mean “peace.”

The Jewish War Veterans of the United States of America Inc. is the oldest active national veterans’ organization in the United States. Jewish-Americans have fought and died in every war since the Revolutionary War and have done so in a proportion greater than their proportion in the general population, at least through the Vietnam War. Approximately 250,000 Jewish-Americans answered the call to action in World War I. In that group, more than 3,500 Jewish-American soldiers died for their country, 12,000 Jewish-American soldiers were wounded, and 1,100 received decorations for bravery. Jewish-Americans made up nearly six percent of America’s armed forces in World War I, despite comprising just over three percent of the country’s population at the time. If the JWV has no standing to bring suit, then who does?

Justice Ruth Bader Ginsburg’s dissent is simple, clear and correct. The government must be neutral, but when a cross is displayed on public property, the government is presumed to endorse its religious content. In the context of war memorial crosses, the dividing line seems simple. Each grave can and must be allowed to have its preferred religious symbol. However, there cannot be a religious symbol, particularly a huge one, that conveys the greater war memorial message, which is “Christianity is the favored religion” and “only Christians died.” Context is important and the various religious symbols as part of a larger display, such as in Arlington National Cemetery, do not convey the religious message of exclusivity. The Bladensburg Cross does convey the message of exclusivity, i.e., Christianity is the established religion.

Some of the conclusions reached by the Supreme Court can be analyzed by analogy. In Justice Brett Kavanaugh’s concluding paragraph in his concurring opinion, he suggests that there are other recourses. The Maryland legislature could enact new laws to require removal of the cross or transfer of the land. The Maryland governor or other state officials have the authority to do so under current Maryland law. The Maryland Court of Appeals may speak to the questions. The people of Maryland can amend the state constitution. There is little chance of any of that happening, which would be seen as anti-Christian, just as there was little chance of southern states ending racial segregation on their own without the decisions of the U.S. Supreme Court.

The majority opinion states it may be difficult to identify the original purpose of a monument, that the monument’s purpose may multiply, that the purpose for maintaining a monument may evolve over time and that destroying may seem to be hostile to religion. It speaks of the Notre Dame cathedral, which, besides being a church, is also a national symbol. Alas, that a war memorial Latin cross would become an American national symbol. Alas, to Christians, that a war memorial Latin cross has significant meanings other than being the ultimate symbol of Christianity.

This massive cross has stood on governmental property for 94 years, allegedly generating no controversy until this lawsuit was filed. At the time when it was built, there was rampant anti-Semitism, which was the reason why the JWV was created after the Civil War. It would be unrealistic indeed to expect opposition to building the cross at the time, which would probably have been dangerous for Jews.

The majority opinion concludes that the cross at issue represents interpretations other than being a Christian symbol. It is a symbolic resting place for ancestors who never returned home. It is a place for the community to gather to honor all veterans. It is a historical landmark. In a similar way, the antebellum South, with its slavery, represented a wonderful way of life for plantation owners and their families. This case should not become a historical landmark, but rather a historic relic.

In Bladensburg

In Bladensburg, a cross did stand
Between three streets on public land
That honor those killed in World War One,
Who, through Christ, will live anon
Though not so those who don’t believe.
We are the Court. So do not grieve.
We worked and seven opinions did we weave
The cross may stand, though it offends,

In Bladensburg

 

Posted in Maryland-National Capital Park and Planning Commission v. American Humanist Association, The American Legion v. American Humanist Association, Symposium on the court's ruling in The American Legion v. American Humanist Association

Recommended Citation: Harvey Weiner, Symposium: The cross may stand, though it offends, SCOTUSblog (Jun. 20, 2019, 6:06 PM), https://www.scotusblog.com/2019/06/symposium-the-cross-may-stand-though-it-offends/